[1]
The Applicants approached the Court to seek an order that the
arbitration award issued
under the auspices of the First Respondent
on 7 January 2014 by the Second Respondent (Arbitrator) under case
number BC.SATAWU/TFR
(SD) GR/11951 be reviewed and set aside. In the
award, the Arbitrator had found that the dismissal of the First
Applicant (Gumede)
was fair. The Third Respondent opposed the
application. The Second Applicant (SATAWU) has since withdrawn from
the matter.

Background
to the application:

[2]
Gumede was employed with effect from 16 May 2011. She was dismissed
on 8 July 2013 following
a disciplinary enquiry into two allegations
of misconduct pertaining to a refusal to obey a lawful instruction,
and assault. At
the time of the dismissal she occupied the position
of train assistant. An unfair dismissal dispute was referred to the
Third Respondent,
and when attempts at conciliation failed, it came
before the Arbitrator for arbitration.

The
arbitration proceedings:

[3]
The allegations against Gumede flowed from an incident that took
place on 19 March
2013. All employees reporting for duty at the Third
Respondent are required to undergo alcohol testing. This practice is
part of
the Third Respondent’s safety requirements. Employees
are required to report to the office of a supervisor, Mr Seeta, who
normally administered the testing. Employees are then required to
sign a register where the results of the test are also recorded,
and
then to proceed to their workstations. On this particular day, Seeta
was not in his office and the administration of the testing
was done
by a supervisor, Ms Mthethwa.

[4]
When it was Gumede’s turn to be tested, Mthethwa had held out
the testing device
for Gumede to blow in. According to Mthethwa,
Gumede tried to take the device from her, and she responded by
pulling it back and
again told Gumede to blow into the device. Gumede
had merely looked at Mthethwa and then walked out of the office
without blowing
into the device. At the time, Gumede had already
signed the register and when Mthethwa called her back, she simply
ignored her
and proceeded out of the office. The incident happened in
the presence of other employees who were waiting to be tested.

[5]
Mthethwa had reported to Seeta what had happened and informed him
that technically,
Gumede was not on duty as she had refused to take
the test. At about lunch time Seeta was instructed by Mthethwa to
call Gumede
to her office in order to resolve the issue of testing.
Seeta returned and informed Mthethwa that Gumede had refused to come
to
the office and had informed him that she (Mthethwa) could do
whatever she wanted. Mthethwa then sought advice from her senior,
Sibiya, who informed her that she should consider suspending Gumede.

[6]
The following day Gumede had attended the testing and had fully
cooperated. Mthethwa
nevertheless informed her after the testing that
she should stay behind as the matter of the previous day pertaining
to her refusal
to undertake the test needed to be discussed. Again,
Gumede simply ignored her and left the room. Mthethwa nevertheless
followed
her out of the room and informed her that the issue needed
to be discussed, failing which she should leave. Again Gumede refused
to cooperate, telling Mthethwa that she would not leave unless
instructed so in writing.

[7]
Mthethwa had then contacted the Employee Relations Department for
advice and was informed
to formally suspend Gumede. She had then
prepared the suspension documents and asked Seeta and another
colleague to accompany her
so that the notice could be served on
Gumede. When they attempted to serve the notice on Gumede and asked
her to sign the documents
and leave the premises, she had simply
ignored them. The witnesses accompanying Mthethwa then signed the
suspension documents and
confirmed that Gumede had refused to comply
or sign the document.

[8]
On 22 March 2013 at about 10h15, Mthethwa went to the ladies room
which was situated
in the office where Gumede worked. Mthethwa
entered the office and found Gumede sitting adjacent to the door
eating. She then proceeded
to the ladies room. A moment later she
heard the door closing and the door leading to the bathroom opened.
The toilet door of the
cubicle she was in opened and Gumede appeared
in front of her while she was seated, with a 1.5 litre glass bottle
in her hand.
She struck Mthethwa in the face with the bottle whilst
she was seated saying to her “Satan! I’m going to get
you! What have I done to you?” Mthethwa managed to
block the blows with her arm and the bottle fell to the floor without
breaking. Gumede nevertheless continued
to beat Mthethwa with her
fists. Mthethwa managed to stand up and pulled her pants and tried to
reach the bottle which Gumede had
kicked away. She had somehow
managed to reach for the door and once inside the office, she had
picked up the bottle and thrown
it through the window to attract
attention.

[9]
A number of her colleagues and security personnel had arrived at the
scene and separated
the two. At the time, Mthethwa was bleeding from
the mouth. Statements were taken from them and thereafter they were
sent to hospital
after being suspended. They both laid criminal
charges against each other and were subsequently arrested on charges
of assault.
They subsequently withdrew the charges against each
other.

[10]
Gumede’s evidence was as follows;

10.1 On
19 March 2013 she had reported for duty at about 07h00 and entered
the supervisor’s office for testing.
She had signed the
necessary documents and when it was her turn to blow into the device,
Mthethwa kept on pulling it away from
her as she attempted to lean
forward to blow into it. She had then left without blowing into the
device. She had then reported
the incident to Seeta and denied that
it was her that had refused to blow into the device. When the shift
ended, she was not allowed
to do the alcohol test.

10.2
The following day she had reported for duty and followed the routine
of testing. Again Mthethwa was administering
the tests, and she had
blown into the device without any incident. Mthethwa had nevertheless
shouted at her in front of her colleagues
as she was leaving, telling
her that she was not allowed to report for duty. She had not
responded and had proceeded towards her
office.

10.3 A
few minutes later Seeta came to her office and informed her that
Mthethwa wished to see her in her office.
She refused to go to
Mthethwa’s office as she had shouted at her. Mthethwa
nevertheless came to her office whilst Seeta was
still there, and
informed her that she was her Superintendent and that she had a right
to send her from ‘pillar to post’.
She had then handed
her a letter of suspension and both Seeta and Mthethwa left. At some
point during the morning Mthethwa again
came to her office, and
informed her that she should pack her things as security was coming
to chase her out. Nothing happened
and she had waited until knock off
time.

10.4 On
22 March 2013 she was in her office eating her lunch at about 10h10
when Mthethwa entered her office,
took her hand bag from the floor
and tossed it out of her office, and then closed the door behind her.
Mthethwa then picked up
a glass bottle of coke which was behind the
door and hit her on the left shoulder with it. She had ducked away
and covered her
head with her arm to protect it. She somehow got up
and ran towards the toilet for safety. Mthethwa nevertheless followed
her,
grabbed her by her T-shirt and when they were in the toilet she
again tried to hit her with the bottle which fell onto the floor.
Mthethwa continued to punch her all over her body and pulled her by
her dreadlocks and kicked her. At the time she was screaming
and
shouting for help. Their colleague, Malatji came to the scene and
separated them.

The
arbitration award:

[11]
In an extensive analysis, the Arbitrator concluded that Gumede’s
allegations of the chairperson
of the internal enquiry being biased
were without merit, and held that the dismissal was procedurally
fair.

[12]
In regards to substantive fairness, the Arbitrator concluded that the
evidence before him did
not disclose that Gumede had refused to
undergo the test, and that she was frustrated in her attempts to
comply with the testing
by Mthethwa’s actions of pulling the
device away from her whenever she attempted to blow into it.

[13]
In regard to allegations of refusing to obey an instruction to meet
Mthethwa when she was called
upon to do so, the Arbitrator found that
a reasonable and lawful instruction had been issued which Gumede had
ignored and was therefore
correctly found guilty on that charge.

[14]
In regards to the allegations of assault, the Arbitrator concluded
that the probabilities favoured
the version of Mthethwa as it was
improbable that as a manager she would act foolishly and recklessly.
It was found that Gumede
on the other hand in the light of the
previous incidents, might have realised that she may be dismissed,
and that her version of
events was improbable, and was thus correctly
found guilty on the charge of assault.

[15]
In regards to sanction, the Arbitrator acknowledged that this may
have been Gumede’s first
offence. He reasoned that assault in
the workplace is an extremely serious offence and that the assault
was perpetrated in a heinous
manner with a glass bottle capable of
inflicting serious injury. The Arbitrator concluded that the assault
in this case was inimical
to the continuation of a normal and
harmonious working relationship.

The legal framework:

[16]
In accordance with the review test as enunciated in Sidumo
and Another v Rustenburg Platinum Mines Ltd and Others[1],
the question before the reviewing Court is whether the decision
reached by the Arbitrator is one that a reasonable decision-maker
could not reach in the light of the material before him. The Sidumo
test
and the approach to be followed by reviewing courts in applying that
test was reiterated by Cachalia JA in Herholdt
v Nedbank Ltd as
follows[2]:

“In
summary, the position regarding the review of CCMA awards is this: A
review of a CCMA award is permissible if the defect in the
proceedings falls within one of the grounds in s 145(2) (a) of the
LRA. For a defect in the conduct of the proceedings to amount
to a
gross irregularity as contemplated by s 145(2) (a) (ii), the
arbitrator must have misconceived the nature of the inquiry or
arrived at an unreasonable result. A result will only be unreasonable
if it is one that a reasonable arbitrator could not reach
on all the
material that was before the arbitrator. Material errors of fact, as
well as the weight and relevance to be attached
to particular facts,
are not in and of themselves sufficient for an award to be set aside,
but are only of any consequence if their
effect is to render the
outcome unreasonable”[3]

“In short: A
reviewing court must ascertain whether the arbitrator considered the
principal issue before him/her; evaluated the facts
presented at the
hearing and came to a conclusion that is reasonable”[5]

[18]
In considering whether or not the decision that the arbitrator
arrived at is one that falls within
a band of decisions to which a
reasonable decision-maker could come to on the available material,
the Labour Appeal Court in Goldfields[6]
further proposed practical guidelines which a reviewing court should
adopt in assessing whether the result of an award is unreasonable.
In
this regard, it was held that that provided that the arbitrator gave
the parties a full opportunity to state their respective
cases at the
hearing, identified the issue that he or she was required to
arbitrate, understood the nature of the dispute and dealt
with its
substantive merits, the function of the reviewing court is limited to
a determination whether the arbitrator’s decision
is one that
could not be reached by a reasonable decision-maker on the available
material[7].

The
grounds of review and evaluation:

[19]
The Applicants attacked the award on the basis that the Arbitrator
reached an unreasonable conclusion
in deciding that Gumede was
correctly found guilty of refusing to obey an instruction. In this
regard, it was submitted that Mthethwa’s
instruction was
unreasonable as she was angry and had shouted at Gumede in front of
other employees and secondly, since the instruction
was issued in an
acceptable manner, it was submitted that it could not be reasonable.

[20]
A refusal to obey an instruction or insubordination is recognised as
one of the grounds of misconduct
which can lead to a dismissal if it
is established that such conduct was gross. It entails a refusal to
accept the authority of
an employer or superior in a position of
authority. In this case, it should be accepted that Mthethwa was
Gumede’s superior
even though the latter appeared not to have
known this fact. Gumede had on no less than two occasions refused to
heed Mthethwa’s
instructions to her to come to her office to
discuss the issue of testing. She also walked away from Mthethwa when
she attempted
to address the issue with her.

[21]
As it was correctly pointed out on behalf of the Third Respondent,
the manner and how the instruction
was issued is irrelevant, and
given the circumstances that the instruction was issued, it cannot be
argued that it was unreasonable.
Starting from the time that Gumede
had refused to blow into the testing device for whatever reason the
Arbitrator had found that
she was justified, it can be said that
Gumede’s attitude was not to cooperate with Mthethwa in every
respect.

[22]
It is acknowledged that it would have been improper for Mthethwa to
shout and scream at Gumede
at the time that she issued the
instruction to her, especially in front of other employees. Gumede
nevertheless had no justification
to simply ignore Mthethwa’s
instructions. The instruction in my view was reasonable and lawful,
as it had to do with the
non-compliance of the employer’s
safety procedures. It was not for Gumede to simply not complete the
safety test and walk
away as if nothing had happened. Mthethwa as her
superior and person responsible for administering the test was within
her rights
and authority to want Gumede to account for her actions.
At most, Gumede could have simply followed the instruction, discussed
the matter with Mthethwa in a civilized manner, and then lodged a
formal grievance against her. Her actions of simply ignoring the
instruction constituted insubordination, and I am satisfied that on
the facts before him, the Arbitrator arrived at a reasonable
conclusion in this regard.

[23]
The Applicants further attacked the conclusions of the Arbitrator in
regards to the charge of
assault. It is trite that when faced with
mutually destructive versions, the arbitrator must in resolving the
dispute, adopt the
approach elucidated in SFW
Group Ltd and Another v Martell et Cie and Others[8],
where it was held that;

“……the
Court said that the technique generally employed by Courts in
resolving factual disputes of the kind as set out above may be
summarised as follows:

‘…To
come to a conclusion on the disputed issues a court must make
findings on (a) the credibility of the various factual witnesses;
(b)
their reliability; and (c) the probabilities.

As to
(a), the court's finding on the credibility of a particular witness
will depend on its impression about the veracity of the
witness. That
in turn will depend on a variety of subsidiary factors, not
necessarily in order of importance, such as (i) the witness's
candour
and demeanour in the witness-box, (ii) his bias, latent and blatant,
(iii) internal contradictions in his evidence, (iv)
external
contradictions with what was pleaded or put on his behalf, or with
established fact or with his own extracurial statements
or actions,
(v) the probability or improbability of particular aspects of his
version, (vi) the calibre and cogency of his performance
compared to
that of other witnesses testifying about the same incident or events.
As to (b), a witness's reliability will depend,
apart from the
factors mentioned under (a) (ii), (iv) and (v) above, on (i) the
opportunities he had to experience or observe the
event in question
and (ii) the quality, integrity and independence of his recall
thereof. As to (c), this necessitates an analysis
and evaluation of
the probabilities and improbabilities of each party's version on each
of the disputed issues. In the light of
its assessment of (a), (b)
and (c) the court will then, as a final step, determine whether the
party burdened with the onus of
proof has succeeded in discharging
it. The hard case, which will doubtless be the rare one, occurs when
the court's credibility
findings compel it in one direction and
evaluation of the general probabilities in another. The more
convincing the former, the
less convincing will be latter. But when
all factors are equipoised probabilities prevail’(Citations
omitted)

[24]
It was submitted on behalf of Gumede that the Arbitrator’s
conclusions in regard to the
charge of assault were unreasonable and
were based on speculation. This submission was made based on the
Arbitrator’s conclusions
that firstly, it was unreasonable that
Mthethwa would risk her career in such a reckless and foolish way by
attacking Gumede, secondly
that Gumede had realised that she had
overstepped her bounds by refusing to obey the instruction, and
thirdly that Gumede had been
frustrated by the events of the previous
day.

[25]
It has been held that the court should interfere with an award if the
arbitrator’s decision
is ‘entirely disconnected with the
evidence’ or is ‘unsupported by any evidence’ and
‘involves speculation’[9].
It might be concluded that the Arbitrator’s reasoning as above
was speculative. At the same time, there is no basis for
a conclusion
to be reached that the conclusions are far-fetched, or entirely
disconnected with the evidence, or unsupported by
evidence.

[26]
In this case, the Arbitrator had stated that he was unable to draw
adverse inferences from an
observation of the demeanour of Gumede and
Mthethwa, and had accordingly determined the probabilities of each
version. To this
end, the Arbitrator had further had regard to
Gumede’s version and concluded that it did not ‘hang
together’
in the light of the evidence that Mthethwa could not
have attacked her with the glass bottle all the way from her office
to the
toilets. Secondly, the Arbitrator took into account the
injuries sustained by Gumede which he concluded were not consistent
with
her version that Mthethwa had attacked her with the bottle.
Thirdly, Mthethwa’s version was corroborated by another
witness,
Malatji, who was the first person on the scene.

[27]
In the light of the evidence before the Arbitrator, it is my view
that his findings based on
the probabilities of each version cannot
be faulted. It is inexplicable that Mthethwa would in the light of
the decision to suspend
Gumede, take it upon herself to without any
provocation, toss Gumede’s hand bag out of her office, pick up
a bottle, start
attacking her and follow her to the toilets and then
continue to assault her. The Arbitrator’s conclusions that it
was improbable
that Mthethwa could have initiated the attack were
further based on the evidence of Malatji and Sibiya who were the
first on the
scene, and who had testified that Mthethwa had explained
the chain of events immediately whilst Gumede could not give an
explanation
then. The Arbitrator’s summation that since Gumede
had not offered an explanation then, she sought time to invent one is
also a reasonable one. It does not appear from the record as to what
on Gumede’s version could have prompted Mthethwa to initiate
the assault. However on the probabilities, it was not unreasonable to
conclude that Gumede was clearly aggrieved by the events
of the
preceding day, and the fact of Mthethwa persisting in getting her
response on the matter, and issuing her with a suspension
letter. I
did not understand from her evidence from the record that Mthethwa
had any reason to initiate the attack, and the probabilities
clearly
favoured Mthethwa’s version as the Arbitrator had correctly
found.

[28]
In regards to the appropriateness of the sanction, it was stated in
Motsamai
v Reverite Building Products[10],
that;

‘It is now
trite that when an Arbitrator arbitrates a dispute, it is the
Arbitrator who decides what is the appropriate sanction
having regard
to: all the evidence presented to him/her; the company’s code
of conduct; and of course the nature and seriousness
of the
misconduct. The fact that the decision is that of the Arbitrator does
not mean that it can be made in a vacuum. Like any
other decision the
decision that the Arbitrator arrives at in respect of the sanction
must also be one that is reasonable in all
circumstances’

[29]
TheConstitutional
Court in Sidumo[11]
further held that the arbitrator must determine whether the dismissal
was fair as an impartial adjudicator and that the commissioner’s
sense of fairness must prevail and not the employer’s view. In
further determining the fairness of a dismissal, an arbitrator
is
also required to take into account a variety of factors including,
the totality of the circumstances of the matter; whether
what the
employer did was fair; the importance of the rule that the employee
breached; the reason the employer imposed the sanction
of dismissal;
the basis of the employee’s challenge to the dismissal; the
harm caused by the employee’s conduct; whether
additional
training and instruction may result in the employee not repeating the
misconduct; the effect of dismissal on the
employee and the
long service record of the employee[12].

[30]
In this case, the Arbitrator had correctly pointed out that assault
in the workplace was an extremely
serious matter. The Arbitrator had
also correctly pointed out that the attack on Mthethwa was of a
heinous kind, and was perpetrated
with a glass bottle which could
have inflicted serious injury. It can also be said that the attack on
Mthethwa was premeditated
and executed with viciousness. There can
never be justification for Gumede’s conduct even if she was of
the view that Mthethwa
had treated her shabbily. Given the manner and
form of the physical assault, on that charge alone a dismissal was
appropriate,
and no form of mitigation under the circumstances would
have come to Gumede’s aid. The nature of the assault clearly
impacted
on the employment relationship between Gumede and Mthethwa,
and had also impacted on her relationship with other employees and
the Third Respondent as a whole. The dismissal was clearly in
response to a risk that Gumede posed to the Third Respondent and
other employees through her violent conduct. Employers cannot be
expected to keep employees who are prone to violent episodes when
there are formal channels to vent out their anger and grievances. To
this end, I am satisfied that the Arbitrator’s sense
of
fairness prevailed after he had taken all the relevant factors into
account. His conclusions that a dismissal was appropriate
are
unassailable, in the light of the extreme circumstances of this case.

[31]
Any contention on behalf of Gumede to the effect that the Third
Respondent had acted inconsistently
in only disciplining her when
Mthethwa was equally involved in the fight is misplaced. Inasmuch as
the probabilities do not favour
Gumede’s version of events, and
in circumstances where it is apparent that she had indeed initiated
the attack, there was
no basis for the Third Respondent to charge
Mthethwa as she was clearly a victim of an unprovoked and vicious
attack. The Third
Respondent had after the fight between the two,
suspended both and conducted investigations into whether there was
cause to discipline
both of them. The investigations had revealed
that Mthethwa was the victim of the attack and had correctly decided
not to charge
her. To the extent that Mthethwa had not committed any
misconduct, there can be no talk of inconsistent application of
discipline,
and the fact that the Arbitrator failed to deal with this
issue does not render the award reviewable, as its determination was
not material to the outcome reached.

[31]
Having had regard to the material that was placed before the
Arbitrator, it is concluded that
he gave the parties a full
opportunity to state their respective cases at the hearing,
identified the issue that he was required
to arbitrate, understood
the nature of the dispute and dealt with its substantive merits.
Even if it could be said that in
evaluating the material before him
the Arbitrator failed to take some into account or ignored some, the
effect of that omission
cannot be said to have a distorting effect on
the ultimate outcome reached. On the whole, I am satisfied that there
is no basis
to conclude that the Arbitrator’s decision is one
that could not have been reached by a reasonable decision-maker on
the
material placed before him.

[32]
The Third Respondent sought a cost order on the basis that the Second
Applicant (SATAWU) withdrew
from this matter on 2 March 2015, but
should nevertheless be held liable for costs as it had initiated this
application. The initial
pleadings were filed by Mabaso Attorneys who
also withdrew from the matter on 25 November 2014. Gumede was
represented by Majare
Attorneys in these proceedings. I have further
had regard to the basis upon which a cost order is sought. I am
inclined to agree
with the Third Respondent that this application was
ill-conceived. I am however persuaded by considerations of law and
fairness
and conclude that no order as to costs should be made.

Order:

i.The
application to review and set aside the award issued on 7 January
2014 by the Second Respondent under case number BC.SATAWU/TFR
(SD)
GR/11951 is dismissed.

ii.There
is no order as to costs.

______________________

Tlhotlhalemaje, AJ

Acting
Judge of the Labour Court of South Africa

Appearances:

For
the Applicant:
Mr. D Majare of Majare Attorneys

For
the Third Respondent:
Mr. P Maserumule of
Maserumule Inc Attorneys